Docudrama: Navigating the Legal Issues of Documentary Filmmaking

For documentarians, the only
thing more complicated than making your film could be the legal blowback after
it’s released. Just ask director Lauren Greenfield. While Greenfield’s film, The
Queen of Versailles, was nabbing the 2012 Directing Award for U.S. documentaries at the Sundance Film Festival, the subject of her
film launched a defamation suit against her, claiming that the film is “a
staged theatrical production, albeit using nonprofessionals in the starring
roles,” according to the
New York Times. The two stayed in
litigation for more than a year before a court ruled in favor of Greenfield.

Several documentarians
including Crude director Joe Berlinger, Tabloid director Errol Morris, and Catfish directors
Ariel Schulman and Henry Joost have all been slapped with lawsuits after their
films were released. But never fear! There are steps you can take before,
during, and after the filming process to sidestep a legal battle. Here’s how to
stay in film festivals and out of court.

“Better than a written
release often is somebody saying, ‘We’re about to start the interview. Are you
ok with it?’” says Donaldson. “Get it on camera. Turn the camera on
before you have that conversation … give the date and time.”

There are some cases when a
release may not be required, though they’re always a good idea just in case. If
your documentary is strictly for informational purposes—that is, it was created
for an editorial outlet such as a newspaper or online publication and isn’t intended
for commercial sale—and the way you’re using the subject isn’t defamatory, it’s
possible to film without using releases, reports the Stanford University Copyright and Fair Use site.

Just because you may be able
to get away with filming without permission doesn’t mean you should rely on it,
says Suzan Beraza, director of
the 2010 documentary Bag It, a chronicle of the growth in plastic use, and
the 2013 film Uranium Drive-In, which explores nuclear energy.
Forgetting to bring releases is one of the biggest mistakes first-time
filmmakers make she says. “It’s always much harder to get those kinds of
things after the fact.”

You’ll also need location
releases for the places where you’re filming, especially if they’re considered
private property, and permits if necessary. Keep an eye on the background too.
Any artwork, logos, or recognizable images that fall in the background of your
film could be copyrighted material and raise questions about fair use after the
film’s release.

During Filming: Check the Facts

One crucial way to sidestep
legal purgatory is to have an air-tight fact-checking process that includes
tracing all information you use back to the original source and keeping
detailed records of where each individual fact used in your film came from and
your process for verifying it. While it’s fine to find information through the
web, the only way you can fully verify it is by tracking back to the original
source, says Suzan Beraza.

“It’s kind of like
playing telephone where by the time [information] goes through several
different versions on the Internet, it can be pretty changed by the time you
read it,” says Beraza. “If we can’t find the original, then we make
sure that we get many multiple sites that say the same thing.”

Jon Garon, director of
the NKU Chase Law + Informatics Institute at Northern Kentucky University and author ofThe
Independent Filmmaker’s Law and Business Guide, says that documentary filmmakers
should study up on the fact-checking processes that reporters and journalists use.

“Part of that is the
same kind of multiple source identification, keeping footage so that if
material is edited they can show that it wasn’t edited out of context, and
really treating the work process much like a journalist so there’s evidence of
accuracy if issues come up down the road,” he explains.

Multiple sourcing can be
especially difficult, Garon says. If an interviewee provides a fact or story
for your film, you’ll need to verify those facts with multiple other people.

“Make clear if you only
have a single source that you do only have a single source and so the audience
is aware of the possible issues that might have as well,” Garon adds.

Keeping your fact-checking
organized counts too. Should an individual or organization bring a libel suit
to your door, having that information ready and organized can squash a
potential suit before it starts.

While filming, you may also
want to nab some errors and omissions insurance, though many filmmakers wait
until filming is complete to apply. Designed to protect filmmakers against
claims of negligence or legal wrongdoing, errors and omissions insurance
provides coverage against anything from defamation to privacy and intellectual
property issues to copyright infringement.

“Having E and O
insurance is a huge sigh of relief,” Beraza adds. “So when you
finally go to release the film, at least you know that if someone does come
after you, you’re not going to lose your home, your office.”

To obtain errors and
omissions insurance—known as E and O in the industry—you’ll need to present an
insurance broker with a release for everyone shown on camera, location
consents, approvals and cue sheets for each song used, fact-checking
documentation, and information on each copyrighted work used in your film says
Garon. Donaldson adds that if there are places where fair use may be questioned
or people who are featured who have not signed a release, you may also need a
clearance letter from an attorney who specializes in such matters.

“Most documentary films
come in at a little over $5,000 for the [errors and omissions] policy premium.
If there are special risks, it drifts upwards,” he adds.

Many filmmakers get errors
and omissions insurance after filming is done and in some cases a distribution
company may pay for it, but buying early rather than late can help ensure that
you’re protected throughout the duration of your project, Donaldson says,
particularly if your project targets a person or industry who’s likely to sue.

“Once you receive a
cease and desist letter, it is virtually impossible to obtain coverage for a
claim from the send of the letter,” Donaldson says. “It is like a
pre-existing condition in medical insurance.”

After Filming: Copyright
and Counsel

Once your film has wrapped,
you’ll need to make sure that none of your material violates fair use
protections, says Julie Ahrens, director of
copyright and fair use for the Stanford Law School’s Center for Internet and
Society. Fair use is “the ability to use copyrighted material without
asking for permission or without getting permission,” she says. “For
filmmakers, seeking out who is the copyright owner of all of the different
material that they might want to use can be extremely burdensome and sometimes impossible.”

According to American University’s Center for Social
Media, there are four basic contexts
when documentarians can use copyrighted material without obtaining permission
ahead of time. For example, filmmakers are allowed to use copyrighted work if
the work is being used as part of a critique, including both serious critiques
and parodies, provided that they don’t use so much of the material that
“it ceases to function as critique and becomes, instead, a way of
satisfying the audience’s taste for the thing (or the kind of thing)
critiqued.” Filmmakers can also freely quote copyrighted material to
illustrate an argument if they attribute the quote either on screen or in the
final credits and only use the minimum quotation necessary to make their point.
Fair use also covers documentary filmmakers if they incidentally catch
copyrighted material while filming something else, though they should still
provide attribution, and if they’re using a limited amount of copyrighted
material in a historical sequence. The full guide to best practices in fair use
is available right here.

Even with a guide, there’s
still a lot of grey area when it comes to fair use. Ahrens says that music
copyrighting oftentimes poses a particularly difficult challenge to filmmakers
“Because the music and the use of sound recordings involves more than one
copyright. You have the copyright in the sound recording, you have the
copyright in the composition, etc., so you have a couple of layers to think about.”

Having a thorough knowledge
of fair use can help you sidestep legal trouble during filming while an
attorney who specializes in documentary film issues can answer grey area
questions and prevent legal issues from brewing. For instance, Suzan Beraza
credits her counsel with providing helpful suggestions to keep her team out of
legal turmoil when she used a copyrighted song under the fair use clause in her
film, Bag It.

“It was a Beatles song
and the lawyers said, ‘Hey just cut maybe three seconds off the tail end of it
to make it seem less like you’re milking it’ and so we did that,” she says.

Beraza acknowledges that
ponying up for insurance, legal counsel, and a ninja-precise fact-checking team
can be a hefty financial burden for new and independent filmmakers, but
skipping those crucial steps could result in even bigger fiscal ramifications,
especially for filmmakers who tackle controversial subjects.

“A sweet story about
your aunt Bertha who’s 83 having a bridge party, things like that, it doesn’t
really matter, but when you get into things where someone could come after you,
that’s when you really, really just have to save some money in your budget to
make sure that you’re protected,” she says.